Ontario Criminal

Breaking and Entering

Proof of offence

Trial judge properly assessed identification evidence

Accused appealed from conviction for breaking and entering with intent to commit indictable offence, assault with weapon, uttering threat, and two counts of failure to comply with probation. Complainant, 15 year old young man was awakened in his home around 4 a.m. by sound of his dog barking and saw light near family car, went outside to investigate and saw man. Man ran away and complainant chased him. When complainant caught up to man at unit in nearby housing complex, man picked up steel pipe and hit complainant in chest. Shortly thereafter, complainant saw man he identified as intruder enter same housing unit and reported all of this to police who knocked on door of unit but received no answer. About four hours later, police called and spoke to occupant of unit, accused, to tell him to come outside and talk to them. Ten minutes later, accused came outside. Accused’s head was shaved, with fair amount of blood flowing from it. Appeal dismissed. Accused disagreed that evidence of identification was sufficient to support convictions. This was not case based exclusively on identification evidence. There was constellation of evidence that included eyewitness identification of complainant who pursued accused on foot and where accused numerous times looked back at his pursuer. Trial judge found complainant’s evidence to be both credible and reliable. None of it was misapprehended by trial judge. Trial judge’s reasons made it abundantly clear that he was well aware of frailties of identification evidence. Trial judge found as fact that accused had hurriedly shaved his head in time between police phone call and when he exited premises. Trial judge was entitled to find that accused had shaved his head in order to attempt to disguise his identity. It was arguable that trial judge may have placed some weight on fact that accused was likely person who robbed mother in past. If so, this could amount to impermissible propensity reasoning. However, trial judge clearly noted that his remarks in this regard were “not integral to this case.” Result would be same without any consideration of these remarks. Assessing evidence all together as was required, it was more than capable of supporting inferences and findings of fact trial judge made. Trial judge did not misapprehend any evidence and in particular he properly assessed identification evidence. Verdicts were supported by evidence and were not unreasonable.

R. v. Coady (Jun. 26, 2015, Ont. C.A., J.C. MacPherson J.A., Janet Simmons J.A., and H.S. LaForme J.A., File No. CA C59399) 123 W.C.B. (2d) 24.

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